MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 October 2001
         DOCKET NUMBER: AR2001061292

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Barbara J. Ellis		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his bad conduct discharge be upgraded to honorable.

APPLICANT STATES: That a review of the findings and corrections of the court-martial do not justly support a bad conduct discharge. Prior to his being transferred to Schofield Barracks, HI he had a good record and had been promoted to Specialist, E-4. After arriving in Hawaii, he developed an alcohol problem which resulted in two Article 15s, both for being disrespectful to a noncommissioned officer (NCO), and his being reduced to Private First Class, E-3 and then to Private, E-1. The Army then turned around and used these same charges in the court-martial, which is double jeopardy. In addition, the guilty finding of specification 1 of charge 3 and charge 3 were set aside and therefore should not have been considered in giving him a bad conduct discharge. At no time was he offered assistance to combat his alcohol problem.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the Regular Army on 30 June 1981. He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).

On 1 September 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for breaking restriction.

On 1 December 1983, the applicant accepted NJP under Article 15, UCMJ for being disrespectful in language and deportment towards his superior NCO.

On 9 May 1984, the applicant accepted NJP under Article 15, UCMJ for disobeying, on 4 April 1984, a lawful order from his superior NCO and for altering an Individual Sick Slip, DD Form 689, on 24 April 1984.

On 6 August 1984, the applicant was tried by a special court-martial on three charges – Charge 1, specification 1 was disobeying an order from an NCO on 18 May 1984; Charge 1, specification 2 was being disrespectful towards an NCO on 18 May 1984; Charge 2 was larceny of U. S. currency of $100, more or less, on 23 April 1984; Charge 3, specification 1 was forgery on 7 April 1984; and Charge 3, specification 2 was forgery on 23 April 1984. He was convicted of Charge 1, specifications 1 and 2 and of Charge III, specification I. He was sentenced to a bad conduct discharge, to be confined at hard labor for 3 months, to forfeit $397 pay for 3 months, and to be reduced to pay grade E-1. For sentencing purposes, the military judge considered the disobeying an order charge and the being disrespectful charge as a single act. On 11 October 1984, the sentence was approved.

On appeal, defense counsel argued that the military judge erred to the substantial prejudice of the applicant in admitting into evidence a laboratory report containing a handwriting analysis without requiring the live testimony of the documents examiner as requested by the defense.

On 8 May 1985, the U. S. Court of Military Review considered the issue asserted by the applicant’s defense counsel, including the one personally raised by the applicant, and found it to be without merit. The findings of guilty and the sentence were affirmed.

On 17 June 1985, the applicant petitioned the U. S. Court of Military Appeals for a review of his conviction.

On 25 August 1987, the U. S. Court of Military Appeals ordered that the decision of the U. S. Army Court of Military Review be reversed as to Charge 3, specification 1 and the sentence. The findings of guilty thereon were set aside and that specification and Charge were dismissed. The record of trial was returned for remand to that Court for reassessment of the sentence based on the remaining findings of guilty.

Upon remand, the applicant’s defense counsel argued that the case should have been returned for a rehearing on the sentence rather than a reassessment because it was not possible to determine what sentence would have been imposed had the applicant not been improperly convicted of forgery.

On 13 November 1987, the U. S. Court of Military Review reassessed the sentence on the basis of the error noted and the entire record and affirmed only so much of the sentence as provided for a bad conduct discharge.

On 4 January 1988, the applicant’s defense counsel filed a petition for a grant of review by the U. S. Court of Military Appeals. Counsel submitted that the two remaining purely military offenses of disobeying a superior NCO and disrespect towards a superior NCO did not warrant a punitive discharge. The Government argued that the applicant had been given NJP pursuant to Article 15, UCMJ on three occasions prior to trial for conduct substantially similar to that for which he was lawfully convicted. It was apparent that despite repeated attempts to teach the applicant the meaning of respect for superiors and the duty to obey orders, he refused to conform himself to the standards required of all soldiers. Thus, there was no reason to keep him in the Army regardless of the forgery offense. Therefore, the Army Court could be certain that even without the forgery conviction the applicant would have received a bad conduct discharge and therefore the Army Court correctly reassessed the sentence.

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On 14 April 1988, the U. S. Court of Military Appeals denied the petition for a grant of review.

On 19 September 1988, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.

Army Regulation 600-85 prescribes policies and procedures needed to implement and operate the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). In pertinent part, it states that identification of a drug or alcohol abuser is accomplished through a variety of methods, including voluntary (self) identification. Voluntary (self) identification is the most desirable method of discovering alcohol or other drug abuse. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek treatment and rehabilitation.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations. His contentions relating to evidentiary and procedural matters were finally and conclusively adjudicated in the court-martial appellate process and furnish no basis for recharacterization of the discharge.

3. The Board notes that the applicant was not court-martialed for the same charges for which he received his Article 15. He received the Article 15 for offenses committed on 4 and 24 April 1984; he was court-martialed for offenses committed on 18 May 1984.

4. The Board notes that the applicant could have self-referred himself to ADAPCP for alcohol treatment and rehabilitation. It appears he did not do so.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__fne___ __mhm___ __bje___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001061292
SUFFIX
RECON
DATE BOARDED	20011018
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	105.01
2.
3.
4.
5.
6.